R v Husband - [2017] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v Husband [2017] QCA 155

PARTIES:

R
v
HUSBAND, Brett Andrew
(applicant)

FILE NO/S:

CA No 169 of 2016
DC No 2361 of 2015
DC No 2364 of 2015
DC No 983 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 26 May 2016

DELIVERED ON:

21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2017

JUDGES:

Gotterson JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four counts of rape, one count of torture and a summary offence – where the applicant was sentenced to concurrent sentences of 10 years’ imprisonment with a serious violent offence declaration on each count of rape and a concurrent sentence of 18 months’ imprisonment on the count of torture – where the applicant contends that the sentence was manifestly excessive – whether the sentence was manifestly excessive

R v D[2003] QCA 88, cited
R v MBJ[2010] QCA 211, cited

COUNSEL:

The applicant appeared on his own behalf
C W Heaton QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the order proposed by Atkinson J and with the reasons given by her Honour.
ATKINSON J: The applicant, Brett Husband, applied for leave to appeal his sentence on the ground that it was manifestly excessive. Mr Husband did not file any written submissions nor did he make any oral submissions when called upon in court.
The respondent filed comprehensive written submissions and also made oral submissions at the hearing in clear and concise terms so that the applicant could understand the nature of the submissions made against his application.
These are my reasons for refusing the application for leave to appeal. Essentially the reason for refusing the application is that it could not be said that the sentence imposed was manifestly excessive given the very serious nature of the applicant’s offending taking into account any mitigating circumstances.
The applicant was sentenced in the District Court on 26 May 2016 on offences contained in two indictments and one summary offence. The offences on one indictment were four counts of rape and one of torture. The applicant was sentenced to concurrent sentences of 10 years’ imprisonment with a serious violent offence declaration on each of the four counts of rape and a concurrent sentence of 18 months’ imprisonment on the count of torture. On a second indictment the applicant was sentenced on one count of possessing child exploitation material to 18 months’ imprisonment to be served concurrently with the sentences of imprisonment for rape and torture, with parole eligibility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Husband

Details

AGLC: R v Husband [2017] QCA 155
Case: [2017] QCA 155
Decision Date: 21 July 2017

CaseChat Overview and Summary

In the case of R v Husband, the applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive. The applicant had pleaded guilty to four counts of rape, one count of torture, and a summary offence. The court imposed concurrent sentences of 10 years' imprisonment on each of the rape counts, with a serious violent offence declaration, and an 18-month concurrent sentence on the count of torture. The applicant argued that the sentence imposed was manifestly excessive, warranting review and potential reduction.

The primary legal issue for the court to address was whether the sentence imposed was manifestly excessive. This required an assessment of the nature and circumstances of the offences, the impact on the victims, and the principles of sentencing, including deterrence, retribution, and rehabilitation. The court had to determine if the sentence imposed was so disproportionate to the offences that it could be considered manifestly excessive, warranting appellate interference.

The court examined the nature and severity of the crimes, the applicant's criminal history, and the impact on the victims. The court found that the crimes were of extreme gravity, involving the rape of a three-year-old child and acts of torture. The court emphasised the importance of protecting society and ensuring that the punishment reflects the seriousness of the offences. While acknowledging the applicant's guilty plea and the need for rehabilitation, the court determined that the sentence imposed was proportionate to the nature and circumstances of the offences and did not constitute a manifestly excessive punishment. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In R v MBJ,[2] The applicant pleaded guilty to the penile anal rape of his three year old nephew and was sentenced to 13 years’ imprisonment. The applicant initially denied raping the complainant, later asserting that he was under the influence of drugs at the time and had little or no memory of the rape. The applicant was 21 years of age at the time of offending. On appeal, de Jersey CJ and Fraser JA (Muir JA dissenting) found that the sentence was not manifestly excessive.[2][2010] QCA 211.Conclusion I would refuse the application for leave to appeal. APPLEGARTH J: I agree with the reasons of Atkinson J and with the order proposed by her Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Husband [2017] QCA 155
PARTIES:	R v HUSBAND, Brett Andrew (applicant)
FILE NO/S:	CA No 169 of 2016 DC No 2361 of 2015 DC No 2364 of 2015 DC No 983 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 26 May 2016
DELIVERED ON:	21 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2017
JUDGES:	Gotterson JA and Atkinson and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four counts of rape, one count of torture and a summary offence – where the applicant was sentenced to concurrent sentences of 10 years’ imprisonment with a serious violent offence declaration on each count of rape and a concurrent sentence of 18 months’ imprisonment on the count of torture – where the applicant contends that the sentence was manifestly excessive – whether the sentence was manifestly excessive R v D[2003] QCA 88, cited R v MBJ[2010] QCA 211, cited
COUNSEL:	The applicant appeared on his own behalf C W Heaton QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent